Hallmark v. Cohen & Slamowitz, LLP
Filing
385
DECISION AND ORDER granting 373 Motion to Approve Settlement, 382 Motion for Final Approval. The Court grants final certification of the class and final approval of the class action settlement. The Court deems Plaintiff's request for attor neys' fees and costs a separate motion under Fed. R. Civ. P. 54(d) and reserves decision as to that motion pending further briefing The action is dismissed in its entirety. Signed by Hon. Elizabeth A. Wolford on 11/30/2018. (CDH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
NOV 3 0
WESTERN DISTRICT OF NEW YORK
gjA/ENGU
P/STRlCl
MICHAEL HALLMARK, on behalf of himself
and others similarly situated,
DECISION AND ORDER
Plaintiff,
I:II-CV-0842EAW
V.
COHEN & SLAMOWITZ,LLP and
MIDLAND FUNDING EEC d/b/a
MIDLAND FUNDING OF DELAWARE,LLC,
Defendants.
ORDER OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT
The parties to this action, plaintiff Michael Hallmark ("Plaintiff or "Class
Representative") and defendants Cohen & Slamowitz, LLP("C&S")and Midland Funding
LLC ("Midland") (collectively, "Defendants"), through their respective counsel, have
agreed, subject to Court approval following notice to the settlement class members and a
final approval hearing, to settle the above-captioned action (the "Action") upon the terms
and conditions set forth in the Settlement Agreement and Release ("Settlement
Agreement")(Dkt. 373-3), which has been filed with the Court.
On March 6, 2018, Plaintiff filed the Settlement Agreement, along with a Motion
for Preliminary Approval of Class Action Settlement ("Preliminary Approval Motion").
(Dkt. 373). In compliance with the Class Action Fairness Act of2005, 28 U.S.C. ยงยง 1711,
et seq., Defendants served written notice of the proposed class action settlement on the
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appropriate state and federal officials. On June 8, 2018, upon consideration of the
Settlement Agreement and the Preliminary Approval Motion, the Court entered an Order
of Preliminary Approval of Class Action Settlement ("Preliminary Approval Order").
(Dkt. 376). Under the Preliminary Approval Order, the Court, among other things, (i)
preliminarily approved the proposed Settlement Agreement; (ii) approved the form and
content of the Class Notice; and (v) set the date and time of the Final Fairness Hearing.
{Id.).
On November 21, 2018,Plaintifffiled a Motion for Final Approval of Class Action
Settlement("Final Approval Motion"), requesting final certification ofthe settlement class
under Rule 23(b)(3) and final approval of the class action settlement. (Dkt. 382). On
November 27, 2018, a final fairness hearing was held pursuant to Rule 23 to determine
whether the Class satisfies the applicable requirements for class action treatment and
whether the proposed settlement is fair, reasonable, adequate, and in the best interest ofthe
Class members and should be approved by the Court. (Dkt. 384).
The Court has read and considered the Settlement Agreement, the Final Approval
Motion, and the record.
NOW,THEREFORE,IT IS HEREBY ORDERED:
1.
Jurisdiction. The Court has jurisdiction over the subject matter ofthe Action
and over the parties thereto.
2.
Class Members. On September 16, 2013, pursuant to Rule 23(b)(3) of the
Federal Rules of Civil Procedure,this Court certified the following class(the "Class") with
respect to the claims asserted in the Action:
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All consumers with New York addresses, who:(a) within one year
before March 9,2012,the date offiling ofPlaintiffs Motion to Amend
in this action; (b) were sent a debt collection letter by Cohen &
Slamowitz,LLP,in a form materially identical or substantially similar
to the letter attached to the Amended Complaint as Exhibit B sent to
the Plaintiff; or(c) were sent a debt collection letter demanding City
Court filing fees that had not yet been paid, incurred, or reduced to
judgment; or (d) were sent a debt collection letter that failed to
disclose that the balance demanded included filing fees that had not
yet been paid, incurred, or reduced to judgment; and (e)the letter was
not returned by the postal service as undelivered.
(Dkt. 110). In particular, the Court found that the Class satisfied the requirements ofFed.
R. Civ. P.23(a)and(b)(3). {Id.). The Court reaffirms the findings set forth in its September
16, 2013 Order with respect to the appropriateness of maintaining this matter as a class
action.
3.
Notice. Pursuant to the Court's Preliminary Approval Order, the approved
Notices were mailed to the members of the Class ("Class Members"). The form and
method for notifying the Class Members ofthe settlement and its terms and conditions was
in conformity with the Court's Preliminary Approval Order, satisfied the requirements of
Rule 23(c)(2)(B) and (e), comported with due process, and constituted the best notice
practicable under the circumstances. The Court further finds that the Notices were clearly
designed to advise the Class Members of their rights.
4.
Fair and Adequate Representation. Plaintiff and Class Counsel have fairly
and adequately represented and protected the interests of all of the Class Members.
5.
Final Approval of the Settlement. The Court finds that the settlement of the
Action on the terms and conditions set forth in the Settlement Agreement is in all respects
fair, reasonable, adequate, and in the best interest ofthe Class Members, especially in light
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of: the benefits to the Class Members; the strength of Plaintiffs case; the complexity,
expense, and probable duration offurther litigation; the risk and delay inherent in possible
appeals; the risk of collecting any judgment obtained on behalf of the class; the years of
extensive and meaningful discovery that took place between experienced and capable
counsel, who reached a settlement through arms'-length negotiations facilitated by an
experienced mediator; the positive reaction of the class to the settlement; and the limited
amount of any potential total recovery for the Class Members if litigation continued.
6.
Settlement Terms. The proposed settlement and Settlement Agreement,
which is filed with the Court(Dkt. 373-3), shall be deemed incorporated herein, are finally
approved, and shall be consummated in accordance with the terms and provisions thereof,
except as amended by any order issued by this Court. The parties are hereby directed to
perform the terms of the Settlement Agreement.
7.
Objections and Exclusions. The Class Members were given an opportunity
to object to the settlement. No Class Member objected to the settlement, either prior to or
at the final fairness hearing.
Five Class Members made valid and timely requests for exclusion and are excluded
from the settlement and are not bound by this Final Order and Judgment. The identities of
such persons are set forth in Exhibit A. attached hereto.
8.
Claim Forms. As of November 21, 2018, the Settlement Administrator
received 2,734 claim forms. Of these claim forms, 39 were untimely, 40 were unsigned,
and 199 requested a name change without providing supporting documentation. For the
reasons stated on the record during the final fairness hearing, the 39 untimely claim forms
and 40 unsigned claim forms will be treated as timely and valid. With respect to the 199
claim forms that requested unsupported names changes, the individuals who submitted
those claim forms will receive checks issued in the legal name reflected in Defendants'
records, along with a cover letter that (1) explains that the check has been issued in the
legal name reflected in the relevant records and (2) affords the affected individuals an
opportunity of not less than 30 days to submit additional documentation supporting the
claimed name change and request a replacement check.
Each of the 2,734 Class Members who submitted a claim form and did not opt-out
ofthe Settlement will receive approximately $59.45, depending on the final amount ofthe
payment due to the Settlement Administrator.
9.
Class Members Bound. This Final Order and Judgment is binding on all
Class Members, except those individuals identified in Exhibit A hereto, who validly and
timely excluded themselves from the Class.
10.
Release of Claims. Plaintiff, the Class Members (except those individuals
identified in Exhibit A), and their successors and assigns are permanently barred and
enjoined from instituting or prosecuting, either individually or as a class, or in any other
capacity, any of the "Released Claims" against the "Released Parties," as set forth in the
Settlement Agreement. (Dkt. 373-3 at ^ 15). Under the Settlement Agreement, the
Released Claims are compromised, settled, released, discharged and dismissed with
prejudice by virtue of these proceedings and this Final Order and Judgment. Nothing
contained herein shall impair or limit any right or cause of action by any Class members to
dispute the underlying debt or amount allegedly owed by them.
11.
No Admission of Liability. This Final Order and Judgment is not, and shall
not be construed as, an admission by Defendants of any liability or wrongdoing in this or
in any other proceeding. Defendants deny any and all liability alleged in the Action.
12.
Retention of Jurisdiction. The Court hereby retains continuing and exclusive
jurisdiction over the parties and all matters relating to the Action and/or Settlement
Agreement, including the administration, interpretation, construction, effectuation,
enforcement, and consummation of the Settlement Agreement and this Final Order and
Judgment.
13.
Attomevs' Fees and Costs. Plaintiff has submitted, in connection with the
Final Approval Motion, a request for $400,000.00 in attorneys' fees. For the reasons stated
on the record at the final fairness hearing, the Court deems this request a separate motion
for attorneys' fees and costs pursuant to Fed. R. Civ. P. 54(d) and reserves decision on this
motion pending additional briefing. In particular. Defendants shall have until January 14,
2019, to file any opposition papers to the request for attorneys' fees and costs. Plaintiff
may file any reply by no later than February 15,2019. The Court's reservation on the issue
of attorneys' fees shall not delay the entry of judgment in this matter, nor shall any
amendment of the judgment be required upon the Court's resolution of this issue. See
Buchanan v. Stanships, Inc., 485 U.S. 265, 268 (1988) (explaining that requests for
attorneys' fees and costs under Rule 54(d) do not "imply a change in the judgment, but
merely seek[] what is due because of the judgment" and therefore do not require a motion
for amendment of the judgment(quotation omitted)).
14.
Distribution of Checks. The Settlement Administrator is ordered to distribute
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checks to all class members who have timely returned a claim form on or before December
31, 2018. Within 120 days of the date of this Final Order and Judgment, the Settlement
Administrator is directed to file a notice apprising the Court that the terms ofthe Agreement
have been complied with and providing the Court with an accounting of how all settlement
moneys were distributed.
15.
Cv Pres Award. Pursuant to the terms of the Settlement Agreement, any
portion of the Settlement Fund that remains after the void date on the Class Members'
checks will be donated to the Western New York Law Center. The Court finds that the
Western New York Law Center is an appropriate cy pres designee and that a donation to
the Western New York Law Center will achieve a purpose as near as possible to the
legitimate objectives underlying the lawsuit, the interests of class members, and the
interests of those similarly situated
16.
Incentive Award. The Court approves payment of an incentive award of
$25,000.00 to Plaintiff for his services as Class Representative, consistent with the terms
of the Settlement Agreement.
The Court finds that special circumstances, including
particularly Plaintiffs active and extensive involvement in the litigation of this matter,
warrant the payment of this award.
17.
Dismissal of Action. This Final Order and Judgment hereby dismisses the
Action in its entirety. Ten days after the filing of the notice and accounting contemplated
in paragraph 14 of this Final Order and Judgment, the dismissal shall become with
prejudice and without costs, absent a timely motion by any party.
so ORDERED.
ELIZA
States District Judge
Dated: November 30, 2018
Rochester, New York
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EXHIBIT A
INDIVIDUALS EXCLUDED FROM THE SETTLEMENT
1.
Betty Lawrence
2.
Carolyn D. Goldman
3.
Michele R. Grippin
4.
Nelly Lluberes
5.
Jalajamma Krishnan
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